Unenumerated Powers and the Rise of Executive Primacy
Cheng-Yi Huang, Unenumerated Power and the Rise of Executive Primacy, 28 WASH. INT’L L.J. 395 (2019).
34 Pages Posted: 4 Jun 2019
Date Written: May 16, 2019
This article argues that contemporary syndromes of constitutional dysfunction do not solely stem from the failures of the controlling executive power. Rather, the tendency of chief executives’ appropriation of power is largely due to the fact that the institutional logic of executive power makes them do so. To govern, the chief executive needs to run the government with power, either political or constitutional. These powers are not always enumerated in the constitution, but would still be regarded as constitutional. This paper argues that the idea of taming unenumerated executive powers by definite constitutional language and text is mostly futile. Drawing from recent cases of constitutional controversies in Japan, Taiwan, and Poland, this article suggests that unenumerated powers which cannot be checked by constitutional mechanisms are the cause of the expansion of executive primacy in constitutional democracies. Following the case studies, this article analyzes the nature and problems of unenumerated powers of the executive. Building on the taxonomy proposed by Louis Fisher, the article argues that unenumerated powers are analogous to the “implied powers” in Fisher’s discussion. It must be affiliated with formal constitutional authority, but its scope would spontaneously expand if there were no sensible constraints on the use of unenumerated powers. Political actors take advantage of the fuzziness of unenumerated powers as a means of expanding their power. In democratic systems, the judicial branch is usually called upon to resolve boundary issues. As such, populist politicians often seek to control the court immediately after taking office, which in order to temper this threat, and ultimately this action contributes to the re-emergence of executive primacy.
Keywords: executive primacy, populism, judicial politics, presidential power, separation of powers, democratic decay
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